Auditor finds state bungled oversight of Jay Peak EB-5 projects in massive fraud

State Auditor Doug Hoffer released a 69-page report on the Jay Peak EB-5 fraud last week that finds state oversight of foreign investor funded projects in the Northeast Kingdom was marked by “misplaced trust, unfortunate decision-making, lengthy delays and missed opportunities to prevent or minimize fraud.”

The Jay Peak fraud is the largest in Vermont’s history and involved hundreds of investors from around the world who were offered a path to a Green Card in exchange for a $500,000 investment to create jobs in an economically depressed region of the United States − in this case Vermont’s Northeast Kingdom − under the federal EB-5 program.

Jay Peak President Bill Stenger traveled the world to meet with investors, ultimately raising about $400 million for eight projects at Jay Peak and Burke Mountain ski resorts, as well as in Newport. Federal prosecutors found more than $200 million of those funds were misused, with up to $37 million going into the pocket of Jay Peak owner Ariel Quiros.

Quiros attorney Bill Kelly was found to have received up to $4 million in investors’ money that was “not legitimately earned.” Both Quiros and Kelly pled guilty to a multi-year wire fraud scheme and concealing material facts in a matter within the jurisdiction of a federal agency. Quiros also pled guilty to money laundering.

Stenger pled guilty to a single felony count of knowingly and willfully submitting false documents to the Vermont Regional Center (VRC), the state-sponsored entity through which all EB-5 projects were approved. Stenger was not convicted of illegally taking investors’ money, but the government argued he too had a financial motive beyond the “glory” of delivering unprecedented economic development to the Northeast Kingdom, as he was expecting to receive a stake in Jay Peak Resort, as well as more than $1 million from another EB-5 project in Newport.

“Three individuals were ultimately convicted of felony offenses related to the fraud, the State’s reputation was bruised by national press coverage, and in July Vermont taxpayers learned they would foot the $16.5 million bill of a global settlement reached between the Vermont Attorney General and a group of EB-5 investors,” Hoffer wrote in a newsletter accompanying the release of the report.

‘Structural design flaw’ sets state up for mishandling oversight of Jay Peak EB-5 projects

The Vermont Regional Center gave a veneer of legitimacy to the Jay Peak EB-5 projects that Hoffer said was ultimately unjustified because of a “structural design flaw” in the way the VRC was set up.

When the Vermont Regional Center was created, oversight was given to the Agency of Commerce and Community Development, which had an immediate conflict of interest, as it was both promoting the EB-5 program and regulating it. To make matters worse, then Gov. Peter Shumlin participated in a promotional video for Jay Peak in which he said the state was auditing the resort’s EB-5 projects, which was not the case.

Hoffer reports the ACCD didn’t find out about the video until two years after it was being shown to potential foreign investors “with this misleading and confusing claim about the State’s due diligence.”

More: A ski resort, a dream and greed: How a $350M fraud happened in Vermont’s poorest region

“The (Vermont Regional Center) did not print a retraction on its website to clarify that the State was not performing financial audits of EB-5 projects, but instead merely reviewing and signing off on project-related employment data,” Hoffer wrote in his newsletter.

$13 million in missing EB-5 funds fails to trigger investigation by state authorities

Hoffer said the state also failed to require audits when concerns about Jay Peak’s EB-5 projects were raised by Douglas Hulme of Rapid Visas USA, a Florida firm that created and promoted the original Jay Peak securities offering materials. Rapid Visas ended its relationship with Jay Peak in 2012, saying it no longer had confidence in the accuracy of representations made by Jay Peak or in the financial status of and disclosures of the partnerships.

“In a telephone call the firm told the ACCD Secretary (Lawrence Miller) that $13 million was missing from Jay Peak’s bank accounts,” Hoffer wrote. “The hint of fraud offered an opportunity for ACCD to seek help from the (Vermont Department of Financial Regulation). They didn’t.”

Instead, Hoffer wrote, Miller asked Stenger about the allegations.

“Stenger denied them and offered records in defense,” Hoffer wrote. “The ACCD Secretary said he was satisfied with the documentation Stenger provided and dropped the matter. With so much at stake, though, due diligence should have included more than a review by a non-auditor of records hand-selected by Stenger. In fact, the U.S. Attorney later determined that the records Stenger provided covered up how the defendants misused investor funds.”

Hoffer: There are other situations where state agencies have conflicts of interest that could cause problems

The ACCD didn’t involve the Department of Financial Regulation in oversight of the Jay Peak EB-5 projects until late in December 2014. Once the DFR began investigating, along with the U.S. Securities and Exchange Commission, the massive fraud in the Northeast Kingdom began to unravel, leading to the convictions of Quiros, Stenger and Kelly.

“Unfortunately, EB-5 is not the only program for which Vermont’s state government has assigned a state agency duties that present similar conflicts,” Hoffer concludes in his newsletter. “Farm-based water quality combines both promotion and enforcement in the Agency of Agriculture, Food and Markets. Economic development grants are frequently promoted, then reviewed and funded, by ACCD.”

Hoffer calls on state officials and legislators to “dedicate themselves to reforming system flaws like these wherever they occur.”

Contact Dan D’Ambrosio at 660-1841 or ddambrosi@gannett.com. Follow him on X @DanDambrosioVT.